Kusturin v. Chicago & A.R. Co.

• Decision Date: 02 April 1919
• Docket Number: No. 12128.,12128.
• Citation: Kusturin v. Chicago & A.R. Co., 287 Ill. 306, 122 N.E. 512 (Ill. 1919)
• Court: Illinois Supreme Court
• Parties: KUSTURIN v. CHICAGO & A. R. CO.

287 Ill. 306

122 N.E. 512

KUSTURIN

v.CHICAGO & A. R. CO.

No. 12128.

Supreme Court of Illinois.

Feb. 20, 1919.

Rehearing Denied April 2, 1919.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Will County; Arthur W. De Selm, Judge.

Action by Matt Kusturin against the Chicago & Alton Railroad Company. Judgment for plaintiff was affirmed on appeal to the Appellate Court (209 Ill. App. 55), and defendant brings error. Affirmed.O'Donnell, Donovan & Bray, of Joliet (Winston, Strawn & Shaw, of Chicago, of counsel), for plaintiff in error.

Snapp, Heise & Snapp, of Joliet, for defendant in error.

STONE, J.

This is a writ of error to the Appellate Court for the Second District to review a judgment affirming affirming a judgment of the circuit court of Will county on appeal. The trial court entered judgment in favor of the defendant in error, after requiring a remittitur of $3,321.80 from the amount of $5,821.80.

The declaration consists of two counts. Both counts allege that the plaintiff in error is an interstate carrier, and that the defendant in error was employed by it as a section hand, with other servants, in repairing and maintaining the track and roadway, by removing old and defective steel rails from the track and roadway and replacing the same with other steel rails. The negligence charged in the first count is that other servants and employés carelessly, negligently, and wrongfully caused or permitted a certain heavy piece of steel, commonly called a rail, to strike and fall upon and against the left foot of the defendant in error with great force and violence. The negligence charged in the second count is that, while plaintiff in error's servants were loading old rails upon a flat car, the foreman or vice principal of plaintiff in error carelessly, negligently, and wrongfully caused, directed or permitted the flat car to be loaded with rails in such a manner that by, through, and in consequence thereof a certain heavy piece of steel, commonly called a rail, fell and struck upon and against the left foot of the defendant in error with great force and violence. The plaintiff in error filed a plea of the general issue, and also a special plea denying that it was engaged in interstate commerce, or that the defendant in error at the time of his injury was engaged in interstate commerce.

The accident happened near Romeo on November 3, 1915. At that point there were four tracks-two main tracks and two side tracks, the main tracks being in the center. The railroad runs practically north and south. The two outside tracks are known as passing tracks. The space between the main and passing tracks is about 8 1/2 feet. The south-bound passing track is about 5 inches lower than the south-bound main track. Both tracks are ballasted; the ballast extending about 2 feet beyond the ends of the ties and sloping gradually to the outside of the passing track. During the two weeks preceding the accident the gang in which the defendant in error worked were engaged in taking out the old rails of the main track, replacing them with new steel, resetting the ties, and surfacing the roadbed. During the forenoon of the day of the accident defendant in error was engaged in tamping the ties and loading the old rails onto a flat car. After noon, when he was hurt, he was helping load onto a flat car some of the old rails that lay in the space between the main and passing tracks. This flat car stood on the south-bound passing track. The particular rails that were being loaded had been lying there about two weeks, opposite the places where they had been taken from the track. There is no evidence that they in any way interfered with the operation of the trains, or as to what was to be done with them after they were loaded on the car. As the old rails were loaded this flat car was ‘pinched’ along, so as to be opposite the next rails to be loaded. The floor of the car was about 4 feet above the rails and about 8 feet wide. The rails were what are called 80-pound rails, but at the time of the accident weighed about 75 pounds to the yard. They were 30 feet in length and weighed about 750 pounds each. In loading a rail the men took their positions side by side along the rail, and at the signal ‘Up,’ given by one of the foremen, picked up the rail. At the signal ‘High’ they raised the rail above their heads, and at the signal ‘Over’ they pushed or threw the rail onto the car. At the time of the accident these signals were given, and one end of the rail was thrown too soon, causing it to fall. Defendant in error testified that he tried to jump back with the others when warned of the danger by shouts from all of the men, and in doing so caught his heel on a tie which protruded from the ballast, and the rail fell on his instep and crushed it badly.

It is contended by plaintiff in error that the defendant in error at the time of his injury was not employed in interstate commerce, that the plaintiff in error was not negligent, that the defendant in error assumed the risk, that the verdict is the result of passion and prejudice, that the trial court erred in rulings on the evidence and in instructing the jury, and that the release executed by the defendant in error is a bar to any recovery.

The action is brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]). The first count of the declaration is based on the averment that both defendant in error and plaintiff in error were at the time of the injury engaged in interstate commerce, and that the injury was received through the negligence of fellow servants employed by plaintiff in error. The second count, while charging that both were engaged in interstate commerce, further charges that the injury was received through the negligence of a vice principal of plaintiff in error, to wit, the foreman of the section gang. The record, however, contains no evidence to establish the negligence of the foreman, and the right of recovery of the defendant in error therefore depends in the first instance upon whether or not both employer and employé were engaged in interstate commerce at the time of the injury. It was stipulated that the employer was so engaged, and the first question presented is whether or not the defendant in error was so engaged at the time of the injury. It is urged by plaintiff in error that the work of removing old rails from the right of way was not an act in the work of repairing the road or roadbed used in interstate commerce and that such work was not an act necessarily incident to such repair, and that therefore defendant in error, while so employed, was not engaged in interstate commerce.

[3] The law governing the facts of the case considered often presents a close question in this class of cases, and its application to such facts by courts at times seems subtle; but, having in mind that Congress has no power to deal with the question, except under its power to regulate interstate commerce, it will be seen that precision in applying the provisions of the federal Employers' Liability Act is perhaps justifiable. As this is a federal question, the views held by the federal court of last resort are therefore controlling. That court, in the case of New York Central & Hudson River Railroad Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298,states the doctrine underlying this class of cases as follows:

‘Each case must be decided in the light of the particular facts with a view of determining whether, at the time of the injury, the employé is engaged in interstate business or in an act which is so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof.’

So in the case of Chicago, Burlington & Quincy Railroad Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, the rule is declared to be:

‘It is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed. * * * The true test of employment in such commerce in the sense intended is, was the employé at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it’-citing Shanks v. Delaware, Lackawanna & Western Railroad Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

The work covered in repairing the track of an interstate road has been held by the federal court to be a part of interstate commerce. In Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the court said:

‘Tracks * * * are as indispensable to interstate commerce * * * as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. * * * We are of opinion that the work of keeping such instrumentalities in a proper state of repair * * * is so closely related to such commerce as to be * * * a part thereof.’

This being the rule in the federal court, the question then arises: Was the work in which defendant in error was engaged at the time of his injury so directly and immediately connected with the repairing of the track of the plaintiff in error or so closely related thereto as to practically form a part of or a necessary incident thereof?

The facts in the Pedersen Case, supra, differ somewhat from the facts in this case, in that in that case the employé was injured while carrying bolts to be used in the work of repairing a bridge which formed part of an interstate road, while in the present case the rails which were being loaded had been taken out of the track, and the evidence does not disclose the purpose for which they were being removed from the right of way. The courts of the various states have somewhat differently applied the...